Thursday, December 21, 2006

Governor Does the Right Thing

Hooray for Governor Schwarzenegger!. Did I just say that, me, a Democrat? I voted for Gray Davis three times for Governor. And yet the first sentence of my column is a commendation for Governor Schwarzenegger. But what does my praise have to do with my party affiliation? Absolutely nothing. Maybe that is because sincere and well deserved praise, and criticism too, should stand on its own irrespective of party affiliation or other extraneous considerations.

Lest the preceding sentence introduce too sanctimonious a tone, let’s get back to Governor Schwarzenegger later. I guess you know where this is leading. It’s about that troubling judicial election last month.

No doubt you have heard and read quite enough about the election of Lynn Olson to the Los Angeles Superior Court. Editorials, articles, opinion pieces, and letters to the editors have exhaustively dissected this “upset” election ad nauseam. So why am I writing about the same thing a month later? See, I was out of town when the election results were posted in the Daily Journal. When I learned the results upon my return, I was numb. It was the same feeling I had when Judge Alfred Gitleson was defeated in a judicial election in 1970, the year that marked the end of clear election sailing for judges. His opponent had been rated "unqualified" by the Los Angeles County Bar Association.

I had to wait for the numbness to wear off this time before I could process the news that Ms. Olson had defeated Judge Janavs. Then I was overcome with guilt. You see I heartily, enthusiastically endorsed Judge Dzintra Janavs. This was an unsolicited offer. I endorsed her because along with countless others, I know her to be a judge of exceptional ability. My motives were partly selfish. She brings distinction and excellence to the bench. Judges of her caliber enhance the judiciary. Months ago I was at a legal function where I found Judge Janvas standing near me at the table of munchies. We chatted and I said while nibbling a carrot stick, “By the way I would be glad, in fact honored to endorse you-- if you don’t think it would be a liability.” A little joke there at the coda. I think she understood me. She graciously laughed, and thanked me for the endorsement. Perhaps this sounds ego-centric, but maybe there was some truth in my feeble humor. You don’t think my endorsement contributed to the result do you? Hello! I didn’t hear your answer.

Whatever my contribution, I have had time to reflect on this terrible outcome. I have heard the accusations against Ms. Olson and her responses, and read the many editorials, articles, and letters to the editors concerning this disturbing election. And having a few weeks to mull things over, I offer a few observations. My motivations are selfish because I want to divert attention away from my being a possible cause of this election gone awry.

So let’s get back to what I was saying earlier about Governor Schwarzenegger. What was it? Oh yes, I was praising him and I might have said something about my being a Democrat. That just sort of slipped out. Oh, now I remember. I said something about praise or criticism should have nothing to do with party affiliation. Is this point of view a reflection of naivety or my profession? A politician’s party affiliation is usually pertinent and relevant to the voters, but a judge’s party affiliation is not relevant.

“Not relevant to what?” a nameless person who is a composite of the general public asked me.

“Not relevant in the mix of criteria you use to evaluate a judge’s performance. What is that you are muttering?”

“Give me a break.”

“Nice colloquialism. Go ahead. Take a 'break' to elaborate."

“Thanks, dude. But don’t tell me party affiliation is not relevant in the decision to appoint judges.”

”Yes, often it is, but not always. But once the Republican, Democrat, Independent, Wobbly, whoever takes the oath of office, then party affiliation is not relevant.”

“Now we are back to square one. Not relevant to what?”

“To the decisions and rulings the judge makes.”

“We the composite public just don’t buy into that. And you, Judge, just admitted to being a Democrat.”

“Yes, but only to illustrate that my party affiliation has nothing to do with my praise of the Governor in this instance. In United Sates v. Nixon, 418 U.S. 683 (1974), for example, president Nixon's appointees to the United States Supreme Court ordered him to produce certain tape recordings and documents during the Watergate investigation.

“You sure they were Republicans?”


“O.K. but that was an exception.”

“No it isn’t. Most judges make every effort to put aside their personal beliefs and prejudices and decide cases on the merits, the facts and the law, and not their preferences.”

“Even if I accept your shaky proposition, if judges had their party affiliation listed on the ballot, I would vote for the ones that belong to my party.”

“And what is your party?”

“Judge, if you would pay attention, you would remember that I am a composite, a number of parties, and points of view rolled into one.”

“So a part of you voted for Lynn Diane Olson, the non practicing attorney who makes bagels instead of legal arguments, the candidate who the Los Angeles County Bar Association rated ‘unqualified’ to sit on the bench.”

“Most of me did. And by the way, to bring up bagels is a cheap shot and detracts from the objectivity of this interview.”

“I suppose you're right. Sorry. But how could ‘most of you’ vote for someone who is not qualified?”

“Most of me didn’t even know what her rating was.”

“The judge she defeated, Judge Dzintra Janavs, was rated “exceptionally well qualified” by the County Bar Assoc. She is one of the most able, conscientious and well respected judges to sit on the Los Angeles Superior Court.”

“Most of me didn’t know that either.”

“Did you know that Judge Janavs is a Republican?”

“Yes, that’s why a large part of me voted for Olson.”

“You irritate me no end.”

“Got something against Democracy?”

I didn’t ask any more questions. This was about one of the most exasperating interviews I have ever conducted. Sure democracy is not all that tidy and people get to vote however they wish and for the most arbitrary reasons. But it is perfectly legitimate to ask and question how this election turned out the way it did. In the Crawford case, Judge Gitleson decided that the law compelled him to order the school board to adopt a desegregation plan for the school district in Los Angeles. He lost the election, not because he was a bad judge, but in fact because he was a good judge. His party affiliation had nothing to do with his decision.

Why did Judge Janavs, another good judge lose the election? Ms. Olson, a Democrat, has been reported to say that she chose to run against Janavs because Janavs is a Republican, and not because of Janavs' foreign sounding name. That may be so, but there is still a triable issue of fact about how and why this election was won by Ms. Olson. Ms. Olson may be a Democrat, but her party affiliation tells us nothing about her qualifications to be a judge. Campaigns, however, can give us insight into character, integrity and values, important qualities we look for in judges and office holders.

I acknowledge that some lawyers voted against Judge Janavs because they disliked her rulings in rent control cases. I cannot speak to the legitimacy of their criticism, but should that be the basis to vote for an unqualified candidate who has never made a judicial ruling in her life? Time will tell what caliber of judge Ms. Olsen will be.

But the wrong that this election created can and will be corrected. Governor Schwarzenegger plans to re-appoint Judge Janavs to the Los Angeles Superior Court. An editorial in the Los Angeles Times last month, chalked up the defeat of Judge Janavs to “politics” and mildly rebuked the Governor for re-appointing Judge Janavs. The Times complained that we cannot pretend to respect the voters when we overturn their decisions. Nonsense. The voters got the candidate they apparently wanted. The voters also elected the governor who has the power to appoint judges. Here, the governor acted in the public interest. He insured the high quality of the Los Angeles Superior Court by keeping Dzintra Janavs, one of its most able and conscientious judges on the court. That’s good politics. And that’s democracy.

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